R v Jason Lawrance
| Jurisdiction | England & Wales |
| Judge | The Lord Burnett of Maldon CJ |
| Judgment Date | 23 July 2020 |
| Neutral Citation | [2020] EWCA Crim 971 |
| Date | 23 July 2020 |
| Docket Number | Case No: 201903220B2 |
| Court | Court of Appeal (Criminal Division) |
[2020] EWCA Crim 971
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM NOTTINGHAM CROWN COURT
MR JUSTICE JEREMY BAKER
Royal Courts of Justice
Strand, London, WC2A 2LL
THE RT HON The Lord Burnett of Maldon
LORD CHIEF OF JUSTICE OF ENGLAND AND WALES
THE HON Mrs Justice Cutts DBE
and
THE HON Mrs Justice Tipples DBE
Case No: 201903220B2
Mr David Emanuel QC appeared on behalf of the Appellant
Mr Clive Stockwell QC appeared on behalf of the Crown
Hearing date: 30 April 2020
Approved Judgment
This appeal raises a question about the meaning of consent for the purposes of section 74 of the Sexual Offences Act 2003. Can a lie about fertility negate ostensible consent? The prosecution alleged that the appellant falsely represented to the complainant that he had had a vasectomy. On that basis she agreed to unprotected sexual intercourse when otherwise she would have insisted on his wearing a condom. On 31 July 2019, in the Crown Court at Nottingham, the jury convicted the appellant of two counts of rape on that basis. He was convicted of three other counts of rape, one of sexual assault and one of assault by penetration, involving other complainants. He was given a life sentence on each count of rape with a minimum term of ten years and 47 days with concurrent determinate sentences on the other counts. The appellant was already serving a life sentence for similar offending.
The complainant has the benefit of lifelong anonymity in this case. No matter relating to the complainant in this case shall during her lifetime be included in any publication if it is likely to lead to members of the public to identify her as the victim of these alleged offences.
The facts
In 2014, the appellant met a woman on a dating website. Messages and phone calls became sexually explicit. In one conversation the complainant spoke of a sexual encounter with another man. When the appellant asked if he had used a condom, she replied that he had not because “he had the snip years ago”. The appellant responded “so have I.” There were no further messages concerning the issue of contraception.
On 21 July 2014 they met. They spent the evening together before returning to the complainant's home. They went to her bedroom. Her evidence was that before they had sexual intercourse, she sought an assurance that the appellant had definitely had a vasectomy. He assured her that he had. She made it clear that she did not want to risk becoming pregnant. He reassured her again that he had undergone a vasectomy. Sexual intercourse then took place between them on two occasions without the use of contraception.
The appellant left during the night. In an exchange of messages the following morning he said “I have a confession. I'm still fertile. Sorry.” The complainant later discovered that she was pregnant and underwent a termination.
The prosecution case was that the complainant's consent was vitiated by the appellant's deception and that even if he genuinely believed that she had consented, such a belief was unreasonable.
The appellant did not give evidence. His defence on these counts was one of consent. The complainant's account was challenged in cross-examination as the appellant's case was that there was no discussion about a vasectomy in her flat. The jury must have accepted the complainant's account.
Relevant statutory provisions
Section 1(1) of the Sexual Offences Act 2003 (“the 2003 Act”) provides:
“(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3) Sections 75 and 76 apply to an offence under this section.
(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.”
Section 74 of the 2003 Act provides the basic definition of consent:
“For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.”
Section 75 is concerned with a series of evidential presumptions (not in issue in this appeal) and 76 sets out “conclusive presumptions about consent”:
“(1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed—
(a) that the complainant did not consent to the relevant act, and
(b) that the defendant did not believe that the complainant consented to the relevant act.
(2) The circumstances are that—
(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
(b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.”
Application to dismiss
Prior to arraignment the appellant applied to dismiss these two rape counts. He submitted that a lie told about a person's fertility could not as a matter of law vitiate consent, even if relied upon by the complainant. In particular, he submitted:
i) Not all deceptions leading to an individual consenting to sexual intercourse are sufficient to negate consent.
ii) Assange v. Swedish Prosecution Authority [2011] EWHC 2849 (Admin) and R (F) v. DPP [2014] QB 581, [2013] EWHC 945 (Admin) were distinguishable. In Assange, the prosecution case was that the complainant agreed to sexual intercourse only if Assange wore a condom, but either he did not do so, or removed it during intercourse. In F, the prosecution case was that the complainant consented to intercourse only on the basis that the defendant would withdraw before ejaculation, but he never intended to comply with that condition and did not do so. On behalf of the appellant it was submitted that deceit as to fertility would not be sufficient to negate consent. In the two cases the consent was given on the basis that ejaculate would be prevented from entering the complainants' vaginas, whereas in the present case this was not what was sought to be avoided. Preventing ejaculate from entering the vagina related to an integral part of the sexual act and was therefore closely connected with it, such that a deceit as to its performance was sufficient to negate consent. In contrast, in the present case the deceit went to the consequences of the sexual act, that is the risk of pregnancy, and was insufficiently connected with the sexual act to negate consent. The appellant relied on the judgment in R v B [2007] 1 WLR 1567, [2006] EWCA Crim 2945 where the appellant in question had not disclosed that he was HIV+ (although he did not represent that he did not have HIV). Consent was not vitiated in that case.
The prosecution submitted:
i) That there was a material distinction between the present case and R v B which concerned a failure to disclose a disease rather than, as in the present case, a positive deception concerning fertility.
ii) There was no material difference between the position of the complainants in Assange and R (F) v. DPP, both of whom sought to avoid the risks of pregnancy, and this case, where consent to sexual intercourse with the appellant was conditional upon his infertility and thus no risk of pregnancy.
The judge ruled that if the jury accepted the evidence of the complainant, the appellant's deceit as to his fertility was capable of negating her consent to having sexual intercourse with him. The question whether an individual's deceit about fertility is capable of negating consent to sexual intercourse should be considered by reference to section 74 of the 2003 Act. It was necessary to consider whether the appellant's deceit as to fertility was sufficiently closely connected to the act of sexual intercourse to be capable of negating the complainant's agreement to have sexual intercourse with him.
The judge concluded that the distinction which the appellant sought to draw between the consequences of the act of intercourse and the nature of the act itself was “artificial”. R v. B was distinguishable because the subject matter of the deceit was the risk of disease as opposed to the risk of pregnancy and because the case concerned a failure by the accused to disclose his HIV status rather than a positive representation to that effect which was relied upon by the complainant. The prosecution case was that the appellant made a positive representation that he was infertile, relied upon by the complainant. Further, one of the fundamental purposes of sexual intercourse is the procreation of children. In those circumstances the appellant's deceit as to his fertility was sufficiently closely connected to the act of sexual intercourse as to be capable of negating her consent to sexual intercourse with him.
The fact that but for the deceit in Assange and R (F) v. DPP the accused's ejaculate would have been prevented from entering the complainants' vaginas, whereas in the present case this would have occurred in any event, was of marginal relevance when the primary purpose of contraception either by way of vasectomy, the wearing of a condom or by the withdrawal method is to prevent pregnancy. The reason why the complainant was prepared to have sexual intercourse was because she believed that there was no risk of pregnancy due to the...
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